Also wants 'pornographer' removed from case centered on pornography

Adult content company Malibu Media has asked a court to ban the terms "copyright troll" and "pornographer" in an upcoming trial that revolves around the fact that the company repeatedly demands thousands of dollars from people that have downloaded its pornographic content.

Allowing the terms would be "unfairly prejudicial and would only serve to impede the impartial administration of justice," according to a filing [PDF] sent by the company last month to a case in Indiana. In response [PDF], this week the defendant, Michael Harrison, argued that the terms accurately describe exactly what the company is and what it does.

The judge in the case has yet to respond, but it is undeniable that Malibu Media's main business is in producing pornographic content. In addition, the term "copyright troll" was itself used by a different judge in another lawsuit on the other side of the country.

The unusual request to limit language used in court reflects the fact that after years of aggressively chasing internet users for alleged piracy, the legal tide has started turning against Malibu Media.

The Electronic Frontier Foundation recently filed an amicus brief defending one of the company's targets and Ohio judge Timothy Black wrote a lengthy criticism of the company in which he openly called it a "copyright troll."

Off the rails

What started out as a way to protect its original content on the website X-art.com has become its own thriving business, with ordinary internet users receiving threatening phone calls and legal notices alongside demands for thousands of dollars. If they refuse, they are served with a lawsuit that may contain purposefully embarrassing material that has no connection to the actual case.

The unusual aspect of the Harrison case is not only that Malibu Media is trying to limit how it is allowed to be described, but that the case appears to be going to trial: the company settles the vast majority of its lawsuits out of court.

Malibu Media is currently the largest filer of copyright lawsuits in the United States, accounting for a third of all cases filed. It has entered into more than 3,500 lawsuits and is currently averaging three more each day. In each case, the company claims its adult movies have been illegally downloaded by the defendant, and asks for the maximum allowable in law: $150,000.

While the defense of its work is understandable, the surprising level of success in getting defendants to settle – largely attributable to the embarrassing nature of the content – has turned the process into its own business.

That in turn has led the company to adopt some questionable approaches that appear aimed at increasing the chance of an out-of-court settlement.

One is the inclusion of a list of titles that having nothing to do with Malibu Media but which the company claims have also been downloaded by the user in question. Such titles often include other pornographic films with lurid titles (Malibu Media's titles are typically suggestive rather than explicit such as California Surf Fever or Erotic Encounter).